Sutton v. Tomco Machining, Inc.

[Cite as Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723.]
SUTTON, APPELLEE, v. TOMCO MACHINING, INC., APPELLANT.
[Cite as Sutton v. Tomco Machining, Inc.,
129 Ohio St.3d 153, 2011-Ohio-2723.]
Common-law tort claim for wrongful discharge in violation of public policy —
R.C. 4123.90 expresses a clear public policy prohibiting retaliatory
employment action against injured employees — Ohio recognizes a
common-law tort claim for wrongful discharge in violation of public
policy when an injured employee suffers retaliatory employment action
after injury on the job but before the employee files a workers’
compensation claim or institutes or pursues a workers’ compensation
proceeding — To establish causation, a plaintiff who alleges wrongful
discharge in violation of public policy as expressed in R.C. 4123.90 must
prove that the adverse employment action was retaliatory, which
requires proof of a nexus between the adverse employment action and
the potential workers’ compensation claim — The remedies available for
wrongful discharge in violation of the public policy against retaliatory
employment actions as expressed in R.C. 4123.90 are limited to those
listed in R.C. 4123.90.
(No. 2010-0670 — Submitted February 15, 2011 — Decided June 9, 2011.)
APPEAL from the Court of Appeals for Montgomery County, No. 23416,
186 Ohio App.3d 757, 2010-Ohio-830.
__________________
SYLLABUS OF THE COURT
1. R.C. 4123.90 expresses a clear public policy prohibiting retaliatory
employment action against injured employees.
SUPREME COURT OF OHIO
2. Ohio recognizes a common-law tort claim for wrongful discharge in violation
of public policy when an injured employee suffers retaliatory employment
action after injury on the job but before the employee files a workers’
compensation claim or institutes or pursues a workers’ compensation
proceeding.
3. To establish causation, a plaintiff who alleges wrongful discharge in violation
of public policy as expressed in R.C. 4123.90 must prove that the adverse
employment action was retaliatory, which requires proof of a nexus
between the adverse employment action and the potential workers’
compensation claim.
4. The remedies available for wrongful discharge in violation of the public policy
against retaliatory employment actions as expressed in R.C. 4123.90 are
limited to those listed in R.C. 4123.90.
__________________
O’CONNOR, C.J.
{¶ 1} The issue presented in this appeal is whether Ohio should
recognize a common-law tort claim for wrongful discharge in violation of public
policy when an injured employee suffers retaliatory employment action after
injury on the job but before the employee files a workers’ compensation claim or
institutes, pursues, or testifies in any workers’ compensation proceeding.1 We
answer in the affirmative and further hold that the available remedies are limited
to those listed in R.C. 4123.90. Accordingly, we affirm the court of appeals’
holding that recognized the wrongful-discharge claim but modify that holding by
recognizing that the available remedies are limited to those listed in R.C. 4123.90.
1. For ease of discussion, the phrase “the employee files a workers’ compensation claim or
institutes, pursues, or testifies in any workers’ compensation proceeding,” which is the language
used in R.C. 4123.90, is shortened to “the employee files, institutes, or pursues a workers’
compensation claim.”
2
January Term, 2011
I. Relevant Background
{¶ 2} Early in the morning on April 14, 2008, DeWayne Sutton injured
his back while disassembling a chop saw on the job at Tomco Machining, Inc.
(“Tomco”).2 He reported the injury to Tomco’s president, Jim Tomasiak. Within
one hour of being told of the injury, Tomasiak fired Sutton, who had been an
employee of Tomco’s for two and one-half years. Tomasiak did not give Sutton a
reason for the firing but did state that the firing was not because of Sutton’s work
ethic or job performance or because Sutton had broken any work rule or company
policy.
{¶ 3} On July 1, 2008, Sutton sent a letter to Tomco that informed it of
his intention to file a claim under R.C. 4123.90 alleging unlawful retaliation. On
September 18, 2008, Sutton filed suit against Tomco and alleged that Tomco fired
him to avoid having Sutton considered an employee when he filed for workers’
compensation and thereby preclude a claim and avoid paying higher workers’
compensation premiums. Sutton asserted two claims for relief: a statutory claim
for unlawful retaliation under R.C. 4123.90 and a tort claim for wrongful
discharge in violation of public policy.
{¶ 4} Tomco moved for judgment on the pleadings, pursuant to Civ.R.
12(C). The trial court granted the motion as to both claims. Sutton appealed.
{¶ 5} The Second District Court of Appeals affirmed the judgment in
part and reversed it in part. Specifically, it affirmed the judgment against Sutton
on the statutory claim on the grounds that R.C. 4123.90 does not expressly apply
to employees, like Sutton, who are retaliated against after they are injured but
before they file, institute, or pursue a workers’ compensation claim. As to the
2. Because this case comes to us on appeal from a judgment on the pleadings in Tomco’s favor,
the facts are recited from Sutton’s complaint. State ex rel. Midwest Pride IV, Inc. v Pontious
(1996), 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (holding that when deciding a motion for
judgment on the pleadings, the court must construe the material allegations in the complaint in
favor of the nonmoving party as true).
3
SUPREME COURT OF OHIO
public-policy claim, it reversed the judgment against Sutton, holding that the
discharge violated public policy as expressed in R.C. 4123.90. The court of
appeals did not address the issue of remedies.
{¶ 6} We accepted Tomco’s discretionary appeal. Sutton v. Tomco
Machining, Inc., 126 Ohio St.3d 1512, 2010-Ohio-3331, 930 N.E.2d 331.
II. Analysis
A. Exception to Employment-at-Will Doctrine
{¶ 7} The traditional rule in Ohio is that at-will employment may be
terminated by the employer at any time for good cause, bad cause, or no cause at
all, and therefore, discharge of an employee does not give rise to an action for
damages. Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 23 OBR 260, 491
N.E.2d 1114. This is commonly known as the employment-at-will doctrine,
which was judicially created and thus may be judicially abolished. Kulch v.
Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 161, 677 N.E.2d 308.
{¶ 8} In 1990, this court recognized an exception to the employment-at-
will doctrine that applies when an at-will employee is discharged or disciplined
for reasons that contravene clear public policy expressed by the legislature in its
statutes. Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio
St.3d 228, 551 N.E.2d 981, paragraph one of the syllabus; Painter v. Graley
(1994), 70 Ohio St.3d 377, 639 N.E.2d 51, paragraph three of the syllabus (“Clear
public policy” sufficient to justify an exception to the employment-at-will
doctrine may be found in statutory enactments, the Constitutions of Ohio and the
United States, administrative rules and regulations, and the common law). The
basis of this exception is that when the General Assembly enacts laws that are
constitutional, the courts may not contravene the legislature’s expression of public
policy. Painter at 385. It is our responsibility to determine when public-policy
exceptions must be recognized and to set the boundaries of such exceptions.
Kulch at 161. In this case, the dissent mischaracterizes our opinion as
4
January Term, 2011
establishing public policy in Ohio. To the contrary, we simply recognize that the
judicial doctrine of employment at will must yield when it contravenes the public
policy as established by the General Assembly in R.C. 4123.90.
{¶ 9} A cause of action for wrongful discharge in violation of public
policy sounds in tort. Greeley at paragraph three of the syllabus. A plaintiff must
prove the following elements to prevail on such a claim: (1) a clear public policy
exists and is manifested in a state or federal constitution, in statute or
administrative regulation, or in the common law (the clarity element), (2)
dismissing employees under circumstances like those involved in the plaintiff’s
dismissal would jeopardize the public policy (the jeopardy element), (3) the
plaintiff’s dismissal was motivated by conduct related to the public policy (the
causation element), and (4) the employer lacked an overriding legitimate business
justification for the dismissal (the overriding-justification element). Collins v.
Rizkana (1995), 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653. The clarity and
jeopardy elements involve questions of law; the causation and overriding-
justification elements involve questions of fact. Id. at 70. We will now address
these elements as they apply to Sutton’s claim.
1. Causation and Overriding-Justification Elements Are Not Before Us
{¶ 10} This case is before us on an appeal from a judgment on the
pleadings, which is a mechanism that is used to resolve questions of law. State ex
rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570, 664
N.E.2d 931. Consequently, the factual elements, i.e. causation and overriding
justification, are not before us. Rather, in order to prevail on his claim, Sutton
must prove them on remand. To establish the causation element, Sutton must
prove that his discharge was retaliatory. Because a discharge could be for reasons
other than those related to workers’ compensation, such as a reasonable suspicion
that the injury was not job related, a disregard by the employee for the employer’s
safety rules, or an immediate need for a replacement employee, no presumption of
5
SUPREME COURT OF OHIO
retaliation arises from the fact that an employee is discharged soon after an injury.
Rather, the retaliatory nature of the discharge and its nexus with workers’
compensation must be established by a preponderance of the evidence. To
establish the overriding-justification element, Sutton must prove that Tomco
lacked an overriding business justification for firing him. Accordingly, we
consider only the clarity and jeopardy elements.
2. The Clarity Element
{¶ 11} Under the clarity analysis, we must determine whether there exists
in Ohio a public policy against retaliatory employment actions like the one
alleged by Sutton. “Clear public policy” sufficient to justify an exception to the
employment-at-will doctrine may be expressed by the General Assembly in
statutory enactments, as well as in other sources, such as the Ohio and United
States constitutions, administrative rules and regulations, and the common law.
Painter, 70 Ohio St.3d 377, 639 N.E.2d 51, paragraph three of the syllabus. In
this case, Sutton identifies R.C. 4123.90 as the source of the public policy;
therefore, the focus of our analysis is R.C. 4123.90 and the General Assembly’s
intention in enacting it.
{¶ 12} In determining legislative intent, we must first look to the statutory
language and the purpose to be accomplished. See Rice v. CertainTeed Corp.
(1999), 84 Ohio St.3d 417, 419, 704 N.E.2d 1217, citing State ex rel. Richard v.
Bd. of Trustees of Police & Firemen’s Disability & Pension Fund (1994), 69 Ohio
St.3d 409, 411, 632 N.E.2d 1292.
{¶ 13} R.C. 4123.90 provides: “No employer shall discharge, demote,
reassign, or take any punitive action against any employee because the employee
filed a claim or instituted, pursued or testified in any proceedings under the
workers’ compensation act for an injury or occupational disease which occurred
in the course of and arising out of his employment with that employer.”
6
January Term, 2011
{¶ 14} R.C. 4123.90 does not expressly prohibit retaliation against injured
employees who have not yet filed, instituted, or pursued a workers’ compensation
claim. But it does expressly prohibit retaliation against injured workers who have
filed, instituted, or pursued a workers’ compensation claim. Essentially, a gap
exists in the language of the statute for conduct that occurs between the time
immediately following injury and the time in which a claim is filed, instituted, or
pursued. Sutton’s firing occurred in that gap. The parties disagree as to whether
the public policy underlying R.C. 4123.90 justifies the creation of an exception to
the employment-at-will doctrine to protect such employees.
{¶ 15} Although we have never before directly addressed whether the
public policy underlying R.C. 4123.90 protects such employees, we have
addressed whether the statute itself protects a similarly situated employee. In
Bryant v. Dayton Casket Co. (1982), 69 Ohio St.2d 367, 23 O.O.3d 341, 433
N.E.2d 142, we addressed whether an employee’s expression of an intent to
pursue a workers’ compensation claim was sufficient to satisfy R.C. 4123.90’s
requirement that an employee “institute” or “pursue” a proceeding and whether
the employee was therefore protected by the statute against retaliation. Id. at 370.
The relevant facts are that the employee, Bryant, cut his finger with a saw during
his second day of employment with Dayton Casket Company, informed someone
within the company of the injury, and was thereafter fired. Id. at 368. At the time
of his dismissal, no workers’ compensation proceedings had actually been
pursued or instituted. Id. at 369. The employee sued and alleged that his firing
was in retaliation for his pursuit of a workers’ compensation claim. Id. at 368.
He argued that his informing someone within the company of the injury was
sufficient to satisfy the R.C. 4123.90 requirement that he pursue a claim. Id. at
370. We held that a mere expression of an intention to pursue a claim is not
“pursuit” of a claim and, therefore, Bryant was not protected from retaliatory
firing under the statute. Id. at 371.
7
SUPREME COURT OF OHIO
{¶ 16} The concurring opinion cautioned that the court was not
interpreting the statute to mean that the actual filing of a claim was the only
means by which a workers’ compensation proceeding could be instituted or
pursued. Id. at 372, 23 O.O.3d 341, 433 N.E.2d 142 (W. Brown, J., concurring).
“If such a requirement was mandated, an employer could [preemptively] fire the
claimant and thus avoid the consequences of R.C. 4123.90.” Id. The concurrence
admonished employers not to read the majority opinion as endorsing “a footrace,
the winner being determined by what event occurs first—the firing of the
employee or the filing of the claim with the bureau.” Id. at 372-373. Such a
reading of the statute, the concurring justice stated, would “frustrate the
legislative intent as evinced in R.C. 4123.90.” Id. at 372. Shortly thereafter, in
Roseborough v. N.L. Industries (1984), 10 Ohio St.3d 142, 143, 10 OBR 478, 462
N.E.2d 384, this court ratified the caution expressed by the concurring opinion in
Bryant.
{¶ 17} Like Bryant, Sutton did not file, institute, or pursue a workers’
compensation claim before he was fired. Even so, Bryant is not dispositive here,
because, as explained below, Bryant was decided before this court recognized the
public-policy exception to the employment-at-will doctrine.
{¶ 18} Eight years after we decided Bryant, we recognized the tort of
wrongful discharge in violation of public policy. Greeley, 49 Ohio St.3d 228, 551
N.E.2d 981, at paragraph three of the syllabus. In doing so, we also held that
“[h]enceforth, the right of employers to terminate employment at will for ‘any
cause’ no longer includes the discharge of an employee where the discharge is in
violation of a statute and thereby contravenes public policy.” Id. at paragraph two
of the syllabus. Therefore, Greeley and its progeny govern resolution of Sutton’s
claim for wrongful discharge in violation of public policy. Bryant governs only
statutory claims, and Sutton’s statutory claim is not before us.
8
January Term, 2011
{¶ 19} Tomco asserts that Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d
351, 2007-Ohio-6751, 879 N.E.2d 201, controls here. But like Bryant, Bickers is
not dispositive. In Bickers, we held that an employee who was receiving
temporary total disability benefits did not have a common-law wrongful-
discharge claim against her employer for a nonretaliatory discharge. Id. at the
syllabus and ¶ 17. Bickers was injured on the job and, as a result, was receiving
temporary total disability payments. Id. at ¶ 3. Following the injury, Bickers
experienced periods of inability to work. Id. Eight years after the injury, the
employer fired her. Id. Thereafter, she filed suit against the employer and
claimed that while she was receiving temporary total disability benefits, she was
fired, and therefore, she was wrongfully discharged in violation of the public
policy underlying R.C. 4123.90. Id. at ¶ 4.
{¶ 20} In determining whether Bickers had a cause of action for wrongful
discharge, we reviewed the origin and nature of the workers’ compensation
system. Id. at ¶ 18. We explained that as the arbiter of public policy, the General
Assembly had decided when to require an employer to hold an injured worker’s
position open. Id. at ¶ 20-24. In making its decision, the General Assembly
balanced the competing interests of employers and employees. Id. at ¶ 23.
Ultimately, “the General Assembly chose to proscribe retaliatory discharges
only.” (Emphasis added.) Id. Accordingly, we deferred to the General Assembly
when we held that Bickers did not have a wrongful-discharge claim for a
nonretaliatory firing. Id.
{¶ 21} Tomco argues that Bickers stands for the proposition that no
common-law action for wrongful discharge in violation of R.C. 4123.90 exists for
nonretaliatory or retaliatory discharges. Tomco’s argument thus ignores the
substance of Bickers and strictly applies the broad language of the syllabus
outside the context of that case. That flaw is fatal to Tomco’s argument.
9
SUPREME COURT OF OHIO
{¶ 22} We find that the General Assembly did not intend to leave a gap in
protection during which time employers are permitted to retaliate against
employees who might pursue workers’ compensation benefits. The alternative
interpretation—that the legislature intentionally left the gap—is at odds with the
basic purpose of the antiretaliation provision, which is “to enable employees to
freely exercise their rights without fear of retribution from their employers.”
Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003-Ohio-5357,
797 N.E.2d 61, ¶ 43. The General Assembly certainly did not intend to create the
footrace cautioned against in Roseborough, 10 Ohio St.3d at 143, 10 OBR 478,
462 N.E.2d 384, which would effectively authorize retaliatory employment action
and render any purported protection under the antiretaliation provision wholly
illusory. Therefore, it is not the public policy of Ohio to permit retaliatory
employment action against injured employees in the time between injury and
filing, instituting, or pursuing workers’ compensation claims. Rather, R.C.
4123.90 expresses a clear public policy prohibiting retaliatory employment action
against injured employees, including injured employees who have not filed,
instituted, or pursued a workers’ compensation claim.
{¶ 23} The dissent misapplies Bickers, 116 Ohio St.3d 351, 2007-Ohio-
6751, 879 N.E.2d 201. The key distinction between Bickers and this case is the
nature of the alleged discharge: nonretaliatory versus retaliatory. The dissent
attempts to diminish the comparative timing of the firings. When Bickers was
fired, she had already successfully sought workers’ compensation. Therefore,
Bickers was protected by the statute from retaliatory firing. In Bickers, we
determined whether the General Assembly also intended to proscribe the firing of
an injured employee for reasons not related to the workers’ compensation claim.
We recognized that the General Assembly intended to proscribe only retaliatory
firings. Id. at ¶ 25, quoting Blankenship v. Cincinnati Milacron Chem., Inc.
(1982), 69 Ohio St.2d 608, 614, 23 O.O.3d 504, 433 N.E.2d 572.
10
January Term, 2011
{¶ 24} Likewise, in this case, we recognize that the General Assembly
intended to proscribe retaliatory firings. We are called upon, however, to
determine what, if anything, the General Assembly intended in leaving the gap in
protection against retaliatory firing immediately following injury but before the
employee files a workers’ compensation claim or institutes or pursues a workers’
compensation proceeding. Bickers did not present this issue. If we were to
decline to address it now, we would leave Sutton and others similarly situated
unprotected from retaliatory firings, which is plainly not the intent of the General
Assembly.
3. The Jeopardy Element
{¶ 25} Under the jeopardy analysis, we must determine whether a
retaliatory dismissal of an employee who is injured on the job but who has not yet
filed, instituted, or pursued a workers’ compensation claim jeopardizes the public
policy against retaliatory employment actions as expressed in R.C. 4123.90. See
Collins, 73 Ohio St.3d at 70, 652 N.E.2d 653. In cases where the right and
remedy are part of the same statute that is the sole source of the public policy
opposing the discharge, the test for determining the jeopardy element is whether
the remedy provisions adequately protect society’s interest by discouraging the
wrongful conduct. Leininger v. Pioneer Natl. Latex, 115 Ohio St.3d 311, 2007-
Ohio-4921, 875 N.E.2d 36, at ¶ 26. Therefore, the test in this case is whether
R.C. 4123.90 provides adequate remedies to protect the public interest against
retaliatory firings.
{¶ 26} The remedies portion of R.C. 4123.90 provides: “Any such
employee may file an action in the common pleas court of the county of such
employment in which the relief which may be granted shall be limited to
reinstatement with back pay, if the action is based upon discharge, or an award for
wages lost if based upon demotion, reassignment, or punitive action taken, offset
by earnings subsequent to discharge, demotion, reassignment, or punitive action
11
SUPREME COURT OF OHIO
taken, and payments received pursuant to section 4123.56 and Chapter 4141. of
the Revised Code plus reasonable attorney fees.” (Emphasis added.)
{¶ 27} The phrase “[a]ny such employee” is a limitation on the class of
people that can avail itself of the remedies set out in R.C. 4123.90. By its express
terms, R.C. 4123.90 does not apply to Sutton or others who experience retaliatory
employment action after being injured but before they file, institute, or pursue a
workers’ compensation claim. Consequently, a claim for retaliatory discharge in
those circumstances is not cognizable under the statute. It is precisely this reason
that Sutton’s statutory claim failed. Therefore, R.C. 4123.90 plainly does nothing
to discourage the wrongful conduct that Sutton alleges. Accordingly, we hold that
R.C. 4123.90 does not provide adequate remedies and thus the jeopardy element
is satisfied.
{¶ 28} Because the clarity and jeopardy elements are satisfied, Ohio
recognizes a common-law tort claim for wrongful discharge in violation of public
policy when an injured employee suffers retaliatory employment action after
injury on the job but before the employee files a workers’ compensation claim or
institutes or pursues a workers’ compensation proceeding.
B. Remedy
{¶ 29} We next determine what remedies are available to Sutton if he
proves retaliatory discharge. A review of our decision in Collins is helpful.
{¶ 30} In Collins, we recognized a common-law tort for wrongful
discharge in violation of the public policy against sexual harassment. Id. at the
syllabus. In that case, Collins had been an employee of a veterinarian for a
number of years. Id. at 67. She alleged that the veterinarian sexually harassed her
throughout her employment and that when she finally disclosed the harassment to
a co-worker, the veterinarian retaliated against her by, among other things,
reducing her pay. Id. at 66. Those adverse actions eventually forced her to quit.
Id. In response to Collins’s complaint for wrongful discharge, the veterinarian
12
January Term, 2011
moved for summary judgment, which was entered in his favor. Id. at 67. The
trial court reasoned that R.C. 4112.02, which prohibits sex-based discrimination
against employees, did not apply to the veterinarian, because he did not satisfy the
statutory definition of “employer.” Id.
{¶ 31} On appeal, this court recognized the clear public policy against
sexual abuse and sexual harassment expressed in R.C. 2907.06 (prohibiting sexual
imposition) and R.C. Chapter 4112 (prohibiting sex-based discrimination). Id. at
70 and 72, 652 N.E.2d 653. R.C. 2907.06, as a criminal statute, does not provide
civil remedies. And R.C. Chapter 4112’s remedies were unavailable to Collins
because the term “employer” is defined under that chapter as “any person
employing four or more persons within the state,” R.C. 4112.01(A)(2), and the
veterinarian employed fewer than four people, Collins at 74. Therefore, we held
that the sources of the public policy did not provide adequate remedies to protect
the public interest against sexual harassment in the workplace, because they did
not discourage sexually motivated harassment of employees of small businesses.
Id. Therefore, we held that the jeopardy element was also satisfied. Id.{¶ 32} We further held that the full spectrum of common-law remedies
was available to plaintiffs like Collins because the legislature did not intend to
limit the remedies to those provided in R.C. Chapter 4112. Collins, 73 Ohio St.3d
at 73-74, N.E.2d 653. In considering the issue, we relied on Helmick v.
Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, 543 N.E.2d 1212, in
which we held that “R.C. Chapter 4112 was intended to add protections for
victims of sexual harassment rather than reduce the protections and remedies for
such conduct.” Id. at paragraph one of the syllabus. In other words, R.C. Chapter
4112 was intended to supplement, not supplant, the common-law protections and
remedies. Collins at 74. Therefore, “R.C. Chapter 4112 does not operate to
preclude [the wrongful-discharge] claim, [so] there is no need to consider whether
the remedies contained in R.C. Chapter 4112 should serve as a basis to reject [the]
13
SUPREME COURT OF OHIO
claim.” Id. Accordingly, we recognized the wrongful-discharge claim and held
that the full panoply of common-law remedies was available. Id.{¶ 33} In contrast, the Workers’ Compensation Act plainly provides
limited, exclusive remedies. Before the enactment of the Workers’ Compensation
Act, common-law tort principles governed recovery for work-related injuries.
Bickers, 116 Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201, at ¶ 18, citing
Fulton, Ohio Workers’ Compensation Law (2d Ed.1998) 3, Section 1.2. Ohioans
adopted the constitutional provision that authorized the General Assembly to
establish the workers’ compensation program. Section 35, Article II, Ohio
Constitution. In 1913, the General Assembly exercised the authority conferred
therein and passed the Workers’ Compensation Act. Bickers at ¶ 19. “This
statutory framework supplanted, rather than amended or supplemented, the
unsatisfactory common-law remedies.” Id. at ¶ 19, citing Indus. Comm. v
Kamrath (1928), 118 Ohio St. 1, 3-4, 160 N.E. 470, and Indus. Comm. v.
Weigandt (1921), 102 Ohio St. 1, 7, 130 N.E. 38.
{¶ 34} The act is premised on the recognition that industrial accidents are
inevitable and that employees injured in the course of their employment ought to
be able to recover certain damages (i.e., benefits). Coolidge, 100 Ohio St.3d 141,
2003-Ohio-5357, 797 N.E.2d 61, ¶ 40. The act shifts the burden of the
consequences of workplace injuries away from the individual employee to the
employer, but ultimately, to society at large. Id. “[T]he Act ‘operates as a
balance of mutual compromise between the interests of the employer and the
employee whereby employees relinquish their common law remedy and accept
lower benefit levels coupled with the greater assurance of recovery and employers
give up their common law defenses and are protected from unlimited liability.’ ”
Bickers at ¶ 19, quoting Blankenship, 69 Ohio St.2d at 614, 23 O.O.3d 504, 433
N.E.2d 572.
14
January Term, 2011
{¶ 35} The compromise established by the General Assembly must
govern the relief available to employees, like Sutton, who suffer retaliatory
employment action after an injury and before they have filed, instituted, or
pursued a workers’ compensation claim, just as it governs the relief for employees
who suffer retaliatory employment action after they have filed, instituted, or
pursued a workers’ compensation claim. Accordingly, we hold that Ohio’s public
policy as established by the legislature is to limit remedies for retaliatory
employment actions against injured employees to those listed in R.C. 4123.90.
{¶ 36} To hold otherwise and allow pursuit of common-law remedies for
wrongful discharges in violation of this public policy would undermine the entire
workers’ compensation scheme, purpose, and operation. It would be nonsensical
to acknowledge a tort in violation of public policy but fail to tailor the remedies in
conformance with that public policy. We therefore hold that the remedies
available for wrongful discharge in violation of the public policy against
retaliatory employment actions as expressed in R.C. 4123.90 are limited to those
listed in R.C. 4123.90.
III. Conclusion
{¶ 37} For these reasons, we recognize a common-law tort claim for
wrongful discharge in violation of public policy when an injured employee suffers
retaliatory employment action after an injury but before he or she files, institutes,
or pursues a workers’ compensation claim. To establish causation, a plaintiff who
alleges wrongful discharge in violation of public policy as expressed in R.C.
4123.90 must prove that the adverse employment action was retaliatory, which
requires proof of a nexus between the adverse employment action and the
potential workers’ compensation claim. We further hold that the remedies
available for the tort are limited to those provided by R.C. 4123.90.
15
SUPREME COURT OF OHIO
{¶ 38} Accordingly, we affirm the judgment of the court of appeals and
remand the cause for determination of the fact-based elements of the claim, i.e.,
the causation and overriding-justification elements.
Judgment affirmed
and cause remanded.
PFEIFER, LUNDBERG STRATTON, and MCGEE BROWN, JJ., concur.
O’DONNELL, LANZINGER, and CUPP, JJ., dissent.
__________________
O’DONNELL, J., dissenting.
{¶ 39} The majority opinion establishes policy for Ohio by recognizing a
common-law tort claim for wrongful discharge in violation of public policy when
an injured employee suffers a retaliatory employment action after injury but
before filing, instituting, or pursuing a workers’ compensation claim.
{¶ 40} Recognizing the legislative branch of government as the policy-
making branch, I would assert that R.C. 4123.90 provides no remedy for Sutton
and would encourage the General Assembly to resolve this situation if it intended
the basis of Sutton’s claim to be part of Ohio’s public policy. In accordance with
Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751, 879
N.E.2d 201, the statute provides the exclusive remedy for claims in this area. As
Justice Cupp wrote in Bickers, “the imposition of common-law principles of
wrongful discharge into the workers’ compensation arena runs counter to ‘the
balance of mutual compromise between the interests of the employer and the
employee’ as expressed by the General Assembly within the Act.” Id. at ¶ 25,
quoting Blankenship v. Cincinnati Milacron Chems., Inc. (1982), 69 Ohio St.2d
608, 614, 23 O.O.3d 504, 433 N.E.2d 572.
{¶ 41} To the contrary, the majority has today expanded the public policy
behind the provisions of R.C. 4123.90 to apply to those persons discharged before
filing, instituting, or pursuing a workers’ compensation claim. This allowance is
16
January Term, 2011
a legislative prerogative, and in my view, we should follow the law as written and
defer to the General Assembly, instead of stretching the extent of protection to fit
situations not addressed by the statute.
{¶ 42} Accordingly, I respectfully dissent and would reverse the judgment
of the court of appeals.
__________________
CUPP, J., dissenting.
{¶ 43} Ohio’s workers’ compensation system, enacted pursuant to state
constitutional authority, is a wholly statutory system. Section 35, Article II, Ohio
Constitution; R.C. Chapter 4123; Kaminski v. Metal & Wire Prods. Co., 125 Ohio
St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 74, 75; Bickers v. W. & S. Life
Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201, ¶ 19; Indus.
Comm. v. Kamrath (1928), 118 Ohio St.1, 3-4, 160 N.E. 470.
{¶ 44} The court today improperly injects common-law principles into
this wholly statutory system, and it exceeds its authority by doing so. Moreover,
the public policy that the court seeks to vindicate by inserting the tort of wrongful
discharge into the law of workers’ compensation is inapposite to the statute upon
which the court relies to derive that policy.
{¶ 45} The majority opinion states that R.C. 4123.90 expresses a clear
public policy against employer retaliation against injured employees. And that
statement is true. There is a clear public policy against employers retaliating
against injured employees who pursue benefits under the workers’ compensation
system. But the majority then uses this platform to make a gigantic leap of logic
to conclude that because the statute does not also prohibit employer conduct that
allegedly seeks to prevent an employee from applying for workers’ compensation
benefits, the statute, ipso facto, must have an unintended gap, which the court, in
its wisdom, must fill.
17
SUPREME COURT OF OHIO
{¶ 46} Contrary to the majority’s unsupported conclusion, there is no gap
in the statute. Rather, it is clear that the legislature, whether wisely or not, chose
not to proscribe employer conduct that was short of retaliation. R.C. 4123.90, as
relevant here, proscribes only employer conduct that retaliates against an
employee’s pursuit of a workers’ compensation claim. For an employer’s conduct
to be retaliatory, the statute requires that the employee must first have sought to
access the workers’ compensation system by having “filed a claim or instituted,
pursued or testified in any proceedings.” R.C. 4123.90. Then, the employer must
have responded by having “discharge[d], demote[d], reassign[ed], or take[n] any
punitive action against [the] employee because the employee filed a claim or
instituted, pursued or testified in any proceedings under the workers’
compensation act.” R.C. 4123.90.
{¶ 47} The conduct that the statute seeks to prohibit is an employer’s
retaliating against an employee after the employee takes some action in pursuit of
a workers’ compensation claim. This is the entire essence of the statutory
proscription. Because the statute does not also proscribe employer conduct that
may tend to discourage or prevent the employee from pursuing a claim in the first
instance, it is clear that the legislature chose not to include such conduct. If the
legislature had so intended, it would have been a simple matter for it to include
language proscribing such conduct.
{¶ 48} The legislature, for example, could have added a few more words
to the text of R.C. 4123.90, such as the following (proposed words in italics):
{¶ 49} "No employer shall discharge, demote, reassign, or take any
punitive action against any employee because the employee filed a claim or
instituted, pursued or testified in any proceedings under the workers'
compensation act for an injury or occupational disease which occurred in the
course of and arising out of his employment with that employer, or take any such
18
January Term, 2011
action in order to prevent or discourage any employee from filing a claim or
instituting, pursuing, or testifying in any such proceedings."
{¶ 50} It may be good public policy to include an employer’s preemptive
conduct within the statutory proscription, or there may be adverse consequences
to such a policy that are not apparent on its face. This court has insufficient
information available to it to make such a far-reaching policy choice. In any case,
the legislature did not include such wording, which makes it clear that that the
legislature intended not to regulate in this area beyond the conduct proscribed in
R.C. 4123.90.
{¶ 51} Even if there were a gap that was unintended, and even if it were
appropriate for this court to attempt to fill that gap, the majority’s chosen remedy
is incongruous with the policy attempted to be vindicated. The majority injects a
common-law tort action for what it terms “retaliation.” In reality, it is not
“retaliation” that is being alleged by Sutton in this case. “Retaliation” involves
some adverse action taken to punish some conduct already undertaken. The
gravamen of the complaint here is that the employer took action to prevent or
discourage the employee from pursuing a workers’ compensation claim in the
first place—not to retaliate for having done so. It is, therefore, unclear how the
court’s remedy for employer “retaliation” can be utilized to any proper effect
when the conduct of the employee against which the employer is alleged to have
retaliated had not yet occurred. Under the allegations in this case, Sutton had not
yet taken any steps toward a workers’ compensation claim—not even the small
step of stating to the employer that he intended to do so.
{¶ 52} The motive alleged by Sutton for Tomco’s firing him was to have
Sutton removed from Tomco’s roster before he applied for workers’
compensation benefits. On the record before us, it is not clear how the
termination of Sutton’s employment would benefit Tomco. Sutton asserts that
Tomco’s purpose in discharging him was to “preclude [his] Workers
19
SUPREME COURT OF OHIO
Compensation injury claim and higher Workers Compensation premiums.” But
this claim lacks any basis in reality because whatever workers’ compensation
benefits may be awarded to a claimant who was employed when he was injured
on the job will either (1) become a part of the employer’s experience rating for
calculation of its future workers’ compensation premium, if the employer is a
state-fund employer, or (2) be paid directly by the employer, if the employer is a
self-insuring employer. This result obtains whether the employee remains
employed by the employer at the time of filing a claim or not. Consequently, this
motive alleged by Sutton as Tomco’s reason for his termination appears to be
nonsensical.
{¶ 53} Furthermore, the termination of an employee simply because the
employee is injured on the job will not have the effect of discouraging the
employee from filing for workers’ compensation benefits. Instead, it is almost
certain to have the opposite effect: it will strongly motivate the employee to file a
claim.
{¶ 54} Finally, this matter was decided on a Civ.R. 12(C) motion for
judgment on the pleadings, so there is not even an evidentiary record upon which
this court may reliably base its leap into the unknown.
{¶ 55} In summary, I express concern because the court today injects
common-law principles into a wholly statutory workers’ compensation system,
finds a gap in the existing statute where none exists, and institutes a remedy
incongruous with the wrongful conduct alleged.
{¶ 56} Although the court has made a significant effort to narrow the
scope of its decision expanding the tort of wrongful termination into the workers'
compensation arena, I must respectfully dissent because I believe that the decision
by the majority, although well intentioned, rests on foundations that are seriously
flawed.
LANZINGER, J., concurs in the foregoing opinion.
20
January Term, 2011
__________________
Jeffrey M. Silverstein & Associates, Jeffrey M. Silverstein, and Jason P.
Matthews, for appellee.
J. Hollingsworth & Associates, L.L.C., and Jonathan Hollingsworth, for
appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Barton Bixenstine, and
Josephine S. Noble, urging reversal for amicus curiae Ohio Management Lawyers
Association.
The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro,
urging affirmance for amicus curiae Ohio Employment Lawyers Association.
Giorgianni Law, L.L.C., and Paul Giorgianni, urging affirmance for
amicus curiae Ohio Association for Justice.
______________________
21